Opposing a tax claim

The Spanish general tax law (law 58/2003 of 17 December) regulates the obligations and the rights of the taxpayer. Spain is probably the country in Europe with most regulations concerning the payment of taxes. At the same time the Spanish law gives guarantees to the taxpayer.

Tax information and data protection

Data protection and privacy are completely integrated into the Spanish constitution. Organic Law 5/1992 and its amendment by Organic Law 15/1999 regulate the treatment of personal data. In practice the “Agencia Tributaria” cannot deliver tax information to a person unless he can prove his identity. While this is possible if the taxpayer presents himself with his ID to a tax administration office, the amount of information that the taxpayer can get over the phone is quite limited, since the identity of the caller cannot be proven reliably. Alternatively tax related data could be obtained through the “Agencia Tributaria” website using a personal SSL security certificate delivered to the taxpayer by the Agencia Tributaria.

Article 34: Rights of the taxpayers

Article 34 of the General Tax law lists the rights of the taxpayer. The list is very long but we can outline several fundamental rights:

Right to be informed about the tax obligations

Right to receive a receipt or certificate for every payment, and any document or communication sent to the administration.

Right to have any costs refunded relating to the cancellation of an unjust payment injunction.

Right of privacy and data protection of taxpayer’s information.

Any administrative body can make mistakes and the taxpayer has the right to have these corrected. The procedure is complicated, but fortunately article 46 of the same law gives the taxpayer the possibility to name a fiscal representative who will take care of defending him before the tax authorities.

When the “Agencia Tributaria” requests information from you

Under the general tributary law 58/2003, the taxpayer has the obligation to deliver upon request of the tributary authorities, invoices, proof of payments and supporting documents relevant to their tax obligations (article 29. 2e).

Since, tax irregularities go into prescription after 4 years (article 66 and 67) it means that the tax obligor will have to keep documents, receipts and proofs of payment for at least 4 years.

Additionally the citizen and the administration have to send the documents using a reliable method. The ways chosen by the Spanish administration are listed in law 6/1997 and are:

Presentation at the offices of the competent administration or one of its branches.

If abroad, presentation at a Spanish consular or diplomatic representation.

A specific service called “ley de procedimiento administrativo” from the national mail service of Spain “Correos”. The post office will certify both shipment and content of the documents sent. The sender will keep the document copies stamped by the post office as long as a receipt with the shipment number.

The voluntary period and the enforcement period

In general any tax has to be paid before certain deadlines. The Spanish authorities call this period the “período voluntario” (voluntary period). Failure to pay before the deadline will mean that it enters the “período ejecutivo” (enforcement period) and in this period the tax will accrue fines. Failure to pay will mean that the tax authorities will eventually seize the tax payer’s assets.

How to dispute a claim or an injunction from the Spanish tax authorities

Any disagreement regarding an action from the tax authorities has to be presented to the “tribunales economico-administrativos” (economic-administrative courts). There are several courts responsible for answering these kinds of complaints: the “tribunal economico-administrativo central” TEAC (central economic-administrative court) the “tribunal economico-administrativo regional” TEAR (regional economic-administrative court) and the “tribunal economico-administrativo local” TEAL (local economic-administrative court).

Each of these courts has different jurisdiction: TEAC is responsible for claims to the central tax authority and for appeals to TEAR or TEAL regarding injunctions of more than 150,000€, or when the taxable base amount is more than 1,800,000€. TEAR and TEAL are responsible for claims to the regional or local tax authorities.

It is best that any appeals regarding a decision from TEAC, TEAR or TEAL are made to the same tribunal which made the original decision.

What is the time frame for disputing the claim?

There is a timeframe of one calendar month as from the day after receiving the notification. There are extended periods in specific cases, particularly if the claim is part of a collective action or if the tax authorities fail to reply within the stipulated time limit (‘silencio administrativo’).

The complaint document

The fiscal representative has to send a document to the appropriate tribunal detailing the reasons for disputing the claim and any evidence supporting the plaintiff’s arguments. If the complaint is an appeal, it will only be necessary to add the evidence that was not presented in the first instance.

The complaint document.

The fiscal representative has to send a document to the appropriate tribunal detailing:

The identification of the plaintiff.

The address for receiving notification from the tribunal (in general the representative’s business address)

The disputed document from the tax authorities

Most importantly, the reasons for disputing the claim.

Any evidence supporting the plaintiff’s arguments. If the complaint is an appeal, it will only be necessary to add the evidence that was not presented in the first instance.

The fast procedure

There are cases in which the claim will be eligible for a fast-track trial. These are:

When the claims are less than 6000€

When the complaint relates to the unconstitutionality or the illegality of a claim made to the taxpayer.

When the complaint relates to the fact that no notification was received about the taxes to pay.

When the complaint is relates to an unfounded or an inappropriate claim.

When the complaint relates to errors in tax calculations.

The fast-track trial guarantees the taxpayer a verdict within 6 months.

Cancellation of the enforcement period

It is important to notify the tax authorities that a complaint has been addressed to the economic-administrative court and to ask expressly for a stay in the proceedings of the tax claim. The tax authorities will cancel the enforcement of the claim during the period necessary for the tribunal to deliver judgement. In order for this to be possible, the taxpayer will have to guarantee the amount of the tax claim, for example by providing a bank guarantee.

If taxpayer cannot guarantee the amounts, the fiscal representative will have to present a special request justifying why the amounts cannot be guaranteed or proving why blocking the amounts could create serious prejudice.

These are general guidelines and not definitive statements of law. All questions about the law’s applications should be directed to a Spanish Lawyer. For additional information please refer to http://www.velascolawyers.com/articles